From the Third Circuit’s en banc ruling issued yesterday in Williams v. Attorney General, drafted by Judge Paul Matey (and referencing, among others, our colleague Will Baude):
The Second Amendment stands as a central safeguard against tyranny, a sturdy bulwark of American liberty, and a crucial means of defending the public good. Consequently, courts weighing limits on these “most sacred” and “necessary” rights must examine the history and tradition of firearm regulation with care and rigor. Edward Williams faced two DUI convictions in the early 2000s, the second of which—without his knowledge—triggered 18 U.S.C. § 922(g)(1), a provision that makes it unlawful for individuals convicted of “a crime punishable by imprisonment for a term exceeding one year” to possess firearms. In an effort to restore his rights, Williams sought a declaratory judgment to determine that § 922(g)(1), as applied to him, violates the Second Amendment.
The court ruled in Williams’s favor; below are select passages from the lengthy opinion:
We commence our Second Amendment inquiry by asking the regulating authority whether the proposed definition of liberty (or restriction, since every definition trims the scope in some way) aligns with longstanding tradition. In evaluating the answer, we search for a durable practice of similar definitions.
A definition that fits within enduring and well-established firearm regulation helps the regulator, because broad acceptance signals that the restriction does not infringe the right. By contrast, it is difficult to demonstrate an equivalence when the challenged restriction applies to people, places, or things that have largely escaped regulation for most of America’s history. Time plays a crucial role, and a recent innovation must be weighed against the Anglo-American common-law tradition. An enduring custom since the founding is nearly dispositive—one would struggle to argue that a state can ban the sale of a flintlock musket. The same standard applies to regulating people: if a regulation has been common throughout our history, that strongly suggests it does not infringe the right.
That is not the situation here given the novelty of forever barring all felons from possessing firearms for lawful purposes. The Federal Firearms Act of 1938 first rendered it unlawful for “any person who has been convicted of a crime of violence or is a fugitive from justice” to possess a firearm. {A “crime of violence” was defined in the Act as murder, manslaughter, rape, mayhem, kidnapping, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year.}
Of course, widespread exclusions from society that do not explicitly touch arms-bearing might sometimes—though not always—reveal that a regulation of an individual aligns with the regulator’s reasoning. Consider classic felonies such as murder and rape, historically punishable by death. Those statutes reflect a regulatory custom of indirect disarmament since a death sentence left the person “dead in law” and outside the protection of the law. The same logic applied when those offenses resulted in life imprisonment, life servitude, or civil death. Penalties tied to these enduring customs were appropriately aimed at protecting the community from potential physical danger….
Yet the DOJ’s broader aim to extend discrete crimes justly punished by death to encompass all felonies, much less every offense punishable by more than a year’s imprisonment, misses the mark. The modern regulatory label of a felony—a crime deserving more than one year of imprisonment—does not approximate the historical standard for defining the liberty protected by the Second Amendment. It captures conduct that would typically justify exclusion, along with a range of less significant acts. Merely labeling Williams’s offense as a “felony” does not suffice.
We must therefore compare with greater specificity, examining Williams’s conduct against the analogies offered by the Government. Williams’s predicate offense requires that the offender 1) operate or be in actual physical control of a moving vehicle, 2) do so after consuming enough alcohol to reach a blood- or breath-alcohol concentration of 0.16% or higher, and 3) have one prior DUI offense. This offense plainly lacks inherent threats of violence. Thus we turn to the Government’s analogies to determine whether they would permit inferring that the ongoing disarmament of Williams remains consistent with the Second Amendment.
The Department of Justice likens this conduct to laws disarming loyalists, underage individuals, vagrants, “common drunkards,” and “habitual drunkards.” Yet only the laws restricting drunkards bear meaningful resemblance to Williams’s behavior, so that is where our focus rests. The first two elements of Williams’s offense echo variations of public intoxication statutes, which criminalize intoxication manifesting itself in public. The third element—the designation of a person as a “common” or “habitual” drunkard—drives the DOJ’s reliance on a particular analogue. Some of those statutes empowered involuntary commitment of habitual drunkards to jails or sobering facilities, while others permitted courts to place habitual drunkards under guardianship.
The DOJ acknowledges it can prohibit Williams’s firearm possession only if he presently constitutes a physical danger when armed, yet it offers no evidence that the habitual drunkard statutes pursued that end. Indeed, its analysis lacks an explanation of the law’s purpose. This silence has since been reinforced by the Supreme Court’s conclusion that these laws did not chiefly aim to shield the public from violence; rather, they sought to protect habitual drunkards—and often their families—from financial ruin.
Nor does the DOJ explain how habitual-drunkard laws reduced the threat of firearm misuse in a way relevant to § 922(g)(1). As Bruen clarifies, when earlier generations addressed a social problem but did so using markedly different means, that can serve as evidence that a modern regulation may be unconstitutional. Here, that is the case, which undermines the analogy to an uninterrupted bar under § 922(g)(1).
Most statutes limited the commitment of habitual drunkards to state institutions, prisons, or forced labor for a matter of months or years. Others permitted indefinite confinement, but there was no indication that release would restore an individual’s right to bear arms. In practice, once a person was deemed “safe,” they were returned to full rights-bearing status.
Finally, the DOJ fails to demonstrate that Williams poses a risk of “misuse of a gun while intoxicated,” or that his alcohol misuse endangers himself or others. In fact, like those nineteenth-century drunkards who were released and regained their rights, Williams shows no current danger from firearms or any other source.
He has not engaged in violence for more than two decades and has held a steady job for over thirty years. He rarely drinks—only an occasional glass of wine with dinner or champagne on New Year’s Eve with family—an fact the DOJ has not challenged. An expert evaluation described him as having a normal personality, with no signs of addiction, psychopathy, or violent tendencies. There is no evidence that Williams has ever used firearms in a dangerous manner, despite a lifetime of gun ownership. He is presently a peaceful citizen capable of exercising the right to bear arms in a manner consistent with the purpose of the Second Amendment….
Our Republic—and many before it—have long understood the danger of excess and the notion that “drunkenness is a state of mind with consequences.” Driving under the influence under such conditions clearly worsens the offender’s fault. Williams’s conviction and sentence align with our tradition because acts incongruent with the virtues required to enjoy the rights of our political community have historically justified punishment and the corresponding loss of civic privileges.
Yet virtuous citizenship is an ongoing effort, with rehabilitation and reentry into the community as a continuous promise. With that rehabilitation comes the restoration of civic privileges guaranteed by the Constitution and the freedom to resume the natural right to defend oneself and resist tyranny. For the reasons stated above, we affirm the district court’s grant of Williams’s summary judgment.
There are other notable elements in Chief Judge Michael Chagares’s partial concurrence and partial dissent, in Judge Arianna Freeman’s partial concurrence and partial dissent, in Judge Patty Schwartz’s dissent, and in portions of the majority opinion not quoted above. (The opinions also address the significant and interesting question of whether and when the newly revived mechanism for obtaining relief from firearms disabilities, 18 U.S.C. § 925(c), should preclude plaintiffs from challenging the disability directly.) Here is a passage from the Freeman opinion:
I part ways with the majority on the point that a prior conviction disarms only when it involved violence or threats. Of course, convictions requiring violence or threats do disarm, and that aligns with our Nation’s historical tradition of firearm regulation. But other convictions can also signal a credible threat to others’ physical safety.
In United States v. Rahimi, the Supreme Court sustained a different federal firearm disability by presuming that the Second Amendment right may be burdened only after a defendant has been found to pose a credible threat to others’ physical safety. A prior conviction can encompass such a finding even if the conviction did not require violence or threats per se.
That is the situation here. Williams was convicted of “driv[ing], operat[ing], or be[ing] in actual physical control of the movement of a vehicle” after consuming enough alcohol to reach the highest rate of intoxication allowed by Pennsylvania’s DUI statute. And he was convicted of this conduct after already having a prior DUI conviction.
Williams’s DUI conviction demonstrates that he controlled a vehicle while severely intoxicated, despite the obvious risk that his conduct could seriously injure or kill others. In other words, he engaged in dangerous use of a vehicle—an instrument that can be deadly.
Because Williams’s conviction shows that he “posed a credible threat to the physical safety of others,” the Second Amendment does not shield Williams from disarmament, at least for a certain period of time.
Williams’s conviction also satisfies the narrower standard our Court announces today. The majority asks whether the conduct at issue presents a risk of physical danger from firearm misuse. But we have already acknowledged that a prior conviction can reveal a risk of firearm misuse even if the conviction did not involve firearms. Williams’s dangerous use of one potentially deadly instrument (a motor vehicle) reveals a risk that he would dangerously misuse another potentially deadly instrument: a firearm….
Joshua Prince (Prince Law Offices, P.C.) and Dillon Harris (Civil Rights Defense Firm) represented Williams.
